Transfield Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

REASONS FOR JUDGMENT 1 This is an application by Transfield Pty Ltd ("Transfield") concerning a business it operates at Seven Hills ("the business"). Members of the first and second respondents ("the Unions") employed in the business are engaged in industrial action. Transfield's application seeks, amongst other things, orders preventing the industrial action continuing. Transfield has sought urgent interlocutory injunctive relief to restrain the employees from continuing to engage in this industrial action pending a final hearing. 2 Transfield limited the basis on which the interlocutory relief was sought to two grounds. The first is that the industrial action is in contravention of an order made by Munro J of the Australian Industrial Relations Commission ("the Commission") under s 127 of the Workplace Relations Act 1996 (Cth) ("the Act") on 30 August 2001. The second is that the industrial action is not protected action for the purposes of the Act and involves conduct proscribed by s 170NC(1). 3 Counsel for Transfield accepted that if it could not establish a sufficiently arguable case for the grant of interlocutory relief on the second ground then it would not succeed on the first ground because of s 170MT (1). 4 Accordingly it is necessary to focus principally on the second ground. Central to that ground are the reasons of Munro J for making the order on 30 August 2001 (Print PR 908287). In those reasons his Honour concluded that a demand intended to create a duty to make monthly contributions to the Manusafe Trust Fund ("Manusafe") for the protection of workers' entitlements was not a matter pertaining to the relations of an employer and employees. That being so, the duty could not be the subject of a certified agreement proposed by an earlier notice purportedly initiating a bargaining period. Manusafe is a scheme developed and promoted as a means of securing future entitlements of employees. Transfield submitted that the industrial action presently being undertaken by the employees is, for the same reason, not protected action for the purposes of the Act. 5 It is necessary to refer briefly to the history of the matter. The employment of the employees was regulated by a certified agreement which, in terms, expired on 30 June 2001. On 23 May 2001 the AMWU ("the Manufacturing Workers Union") gave notice pursuant to s 170MI in order to initiate a bargaining period and particularised, in accordance with s 170MJ, a list of matters which included: "Monthly payments to the Manusafe Trust Fund for the protection of workers [sic] entitlements" 6 Central to Munro J's decision was whether that claim could pertain to the relationship of an employer and employees. That issue appears to have been viewed by his Honour as significant because a certified agreement under Division 2 may be made about matters pertaining to the relationship between an employer and employees. 7 On 7 September 2001, after the decision of Munro J, the Manufacturing Workers Union again gave notice initiating a further bargaining period. The list of matters particularised included: "Monthly payments to a trust fund approved by the AMWU for: (a) the protection of workers' entitlements; and/or (b) allowing for benefits to be portable across your or your employees' industry A provision that ensures that in the event of a transmission of business (or part of a business) or other similar situation arising you, or a successor to your business (or part of your business, as the case may be) must pay into a trust fund approved by the AMWU enough money to cover all affected employees accrued entitlements " 8 On 7 September 2001 the CEPU ("the Electrical Trades Union") also gave notice initiating a bargaining period. The list of matters particularised included: "Introduction of employer funded income protection insurance scheme … A method for the protection of employee entitlements i.e. Past and future entitlements " 9 On 23 October 2001, the Manufacturing Workers Union gave notice of an intention to undertake industrial action as protected action. The notice was purportedly given under s 170MO. The nature of the intended action was identified as a strike of all employees and a ban on overtime. Notice to similar effect was given by the Electrical Trades Union on 24 October 2001. 10 Counsel for Transfield developed its submissions in the following way. The decision of Munro J established, at the very least as arguably correct, that a claim for payments into Manusafe was not a claim about a matter pertaining to the relationship between an employer and its employees. Accordingly, having regard to the terms of s 170LI, an agreement could not be certified containing a provision dealing with that claim. Section 170ML contemplated that industrial action could be protected action if (and probably only if) it was in support of a claim or claims about which there could be an agreement to be embodied in a certified agreement. Thus action in support of such a claim (a claim for payments into Manusafe) could not be protected action. 11 Transfield's case for interlocutory relief was advanced on a narrow footing. Counsel for Transfield did not seek to argue, apart from referring to the legal conclusion of Munro J, that generally a claim for the payment of amounts by an employer to a third party to be held on trust for the benefit of an employee was not a matter pertaining to the relationship of employer and employee. Rather, it was submitted that the claims made by the Manufacturing Workers Union and the Electrical Trade Union set out in [7] and [8] above were, at the least arguably, sufficiently similar to the claim considered by Munro J (set out in [5] above) for the legal conclusion of his Honour to apply equally to them. Indeed, on one view, counsel for Transfield was submitting that the claims should be viewed as the same at least in terms of their legal character. 12 I accept, having regard to the decision of Munro J, that his Honour's determination of the legal issue before him is arguably correct. I only put it this way having regard to the principles concerning the grant of interlocutory injunctions. However that does not necessarily make good the proposition advanced by Transfield, namely that there is a sufficiently arguable legal issue to warrant the grant of an interlocutory injunction in the present matter having regard to the balance of convenience. 13 In my opinion, the question of whether an arguable issue is raised by Transfield has to be considered by reference to the matters particularised pursuant to s 170MJ in the notices of 7 September 2001. It was those notices which were relied on by the Unions on 23 and 24 October 2001 to afford the proposed industrial action the protection the Act can provide. Having regard to the submission made by Transfield, it is necessary to consider whether there is a material difference between the claims formulated in the 7 September 2001 notices and the claim considered by Munro J which are found in the notice of 23 May 2001. 14 The reasons for decision of Munro J were lengthy. His Honour's ultimate conclusion about the impugned claim was expressed in these terms (at par 72): "Together, those considerations lead me to conclude that a claimed duty to make monthly contributions to the Manusafe Trust Fund for the protection of workers' entitlements is not a matter pertaining to the relations of an employer and the employees to be covered by the agreement proposed in this matter. That conclusion applies to Manusafe as reflected in the Trust Deed presented in this case. It extends also to the claim made for a duty on Transfield to contribute to a fund similar to Manusafe and administered by Coverforce Pty Ltd but not called by the name Manusafe. Because the claim made is specific to Manusafe, or to a facsimile of the Manusafe Trust Fund, there is no scope for severance." 15 The considerations referred to in the first sentence of this passage were set out in [68] of his Honour's reasons. They were matters quite specific to the arrangements established by the instrument (described as a trust deed) and other material his Honour had before him which concerned Manusafe. The matters included the payment of minimum contributions by an employer, the manner in which and to whom surplus investment income would be distributed, the certainty with which an employee's entitlement to payment was secured, the discretion of the trustee concerning payment, the circumstances in which an employee might be entitled to payment, the objectives of the trust including its investment objectives, the obscurity and potential width of those objectives and also the specificity with which the claims were formulated (that is, they were specifically related to and only concerned Manusafe). 16 In my opinion, the legal conclusion of Munro J was based on and referrable only to the specific arrangements proposed for Manusafe. The relevant claims particularised by the Unions on 7 September 2001 are in general terms and are quite unlike the specific claim considered by Munro J. It is true that the scheme reflected in Manusafe purportedly dealt with the same subject matter comprehended by the 7 September 2001 claims. However those latter claims are not, in terms, demanding the establishment of the Manusafe scheme. Indeed as counsel for the Unions pointed out, the claim of the Manufacturing Workers Union contemplated the approval of a trust fund by that union which fairly clearly implies the establishment of a new and different trust in the future as part of the settlement of the claim. Similarly it appears the Electrical Trade Union's claim was not intended to relate to Manusafe having regard to the general language used. 17 It was conceded (in my view correctly) by counsel for both Transfield and the respondents (including the Unions) that the 7 September 2001 claims provided the reference point for determining whether later industrial action might not be protected action for the reasons given by Munro J (at least in the absence of a submission that the claims were a sham or were contrived). If, however, it is relevant to pay regard to the subsequent conduct of, and statements made by, representatives of the Unions in their dealings with Transfield after the bargaining period was purportedly initiated, it is tolerably clear that the Unions were not seeking that Transfield subscribe to the Manusafe arrangements. Rather it appears from the evidence that the method of securing employee entitlements as claimed was a matter that could be discussed in negotiations. 18 Having regard to the way Transfield advanced its case in the application for interlocutory relief, I am not satisfied that it has anything more than a faintly arguable point based on the legal conclusion of Munro J. 19 While the apparently considerable and adverse commercial consequences to Transfield of the industrial action continuing can be considered in assessing the balance of convenience, so too must the rights conferred by the Act on employees to engage in industrial action in pursuit of their industrial interests whatever the commercial effect is on the employer subject, of course, to the provisions of the Act which, inter alia, confer on the Commission a power to suspend or terminate a bargaining period: see s 170MW. The strength of an applicant's case is a relevant consideration in evaluating the balance of convenience. In this matter I am not satisfied, having regard to the weakness of the case advanced by Transfield, at least to this point, that interlocutory injunctive relief should issue. 20 It is unnecessary for me to express a conclusion about the detailed written submissions handed up by the Unions to the effect that, apart from the legal conclusion of Munro J concerning Manusafe, a claim for the payment of amounts by an employer to a third party to be held on trust for the benefit of an employee is, by reference to existing authority, clearly a matter pertaining to the relationship of employer and employee at least as a matter of principle. Nor is it necessary to express a conclusion about the submission of the Unions that claims can be made about matters to be included in a certified agreement even though one or a number of the claims do not pertain to the relationship of employer and employee: see Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 178 ALR 61 at [33]-[35]. 21 Accordingly I order that the application for interlocutory relief be dismissed. I was asked by counsel for the respondents to reserve on the question of costs. I will do so and direct that if any application is made for costs, written submissions in support of the application be filed and served within seven days and any written submissions opposing the application be filed and served within a further seven days. However my tentative view is that the proviso on the fetter on the power to order costs found in s 347 (on the assumption that this section is applicable) has not been enlivened in this matter. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.